LAW OF EVIDENCE

401
GENERAL INTRODUCTION
•Definitions – classifications of evidence
•Presumptions – kinds of presumptions , rebuttable and irrebuttable presumptions
•Admissions and confessions – comparison and the effect
•Hearsay Rule and exceptions
•Opinion of third party-expert and non expert opinion ,proof hand writing etc
•Evidence of Character –when bad character relevant, proof of previous convictions
•Witnesses how to treat them.
•Reading materials
•Law and practice relating to evidence in Nigeria by T A Aguda
•Evidence Act of Nigeria 2011 (as amended)
•Nigeria Police Training Manual etc

•Historical background
• pre amalgamation
HISTORICAL BACKGROUND
PRE COLONIAL COURTS
• B4 the British colonial court were established, the courts were mainly customary court and in the northern parts are the
presence of shariah courts
• What was applicable rules of evidence? The customary rules and Islamic law of evidence
• The British colonial courts were governed by the English common law
• S. 10 of the provincial court ordinance no 7 of 19 14 states that ‘ subject to the terms of that or other ordinances the
common law of England should be applicable as far as possible as then what was known as the colony and protectorates.
this provision was repealed but was substantially re-enacted in protectorates courts ordinance no 45 of 1933, supreme
courts ordinance no 23 of 1943 and the Magistrate courts ordinance no 24 of 1943
• In the same 1943 an Evidence Ordinance of 19 43 largely based on the Stephen’s digest of the law of evidence12 ed was
passed but came into operations in 1945.
• By 1960 Nigeria gained her independence thus Evidence ordinance that predates the independence constitution were
incorporated in the constitution.
• It remained same with the Republican constitution.
• The Evidence Act remained substantially the same under the Military regime and until the 2 nd
Republic
• The E A didn’t change until 2011 when the amendment was incorporated that took care of the
admissibility of electronic evidence as documentary evidence
DEFINITIONS AND CLASSIFICATION
OF EVIDENCE
• Basic rules of evidence were evolved to assist in determinations of four
basic problems.
• 1 upon whom rest the burden of proving the facts – usually not a clear cut
matter ( pendulum swings)
• 2 what facts may be proved . Generally parties must prove all material facts
which he intends to rely in proving his case. NB. There are exceptions to the
general rule especially cases where the court has taken judicial notice of or in
civil cases where there is formal admissions in pleadings.
•
• Eg proof by real evidence , documentary and oral , further more 2011
amendment of the E.A. allows proof by electronics see s. 258 definition of
document.
• DFN
• Phipson on Evidence 11th edition ‘ Evidence means the testimonies
whether oral documentay or real which may be legally received in
other to prove or disprove some facts in dispute’
• PROF CROSS stated that ‘ the testimonies, hearsay, document ,things and facts which
a court will accept as evidence as fact in issue in a given case’
• prof NOKES opine that judicial evidence is evidence received by court of justice in
proof or disproof of facts , the existence which comes in question before them.
• Working dfn Evidence is the means by which facts in issue are established before a
judicial tribunal such evidence could be oral testimonies of the person who actually
perceived the fact, documentary Evidence which is the production of evidence to prove
fact in issue or real evidence which is the inspection of material objects other than the
document by court.
WHAT IS A FACT?

• Under the E A facts includes:

• a) anything, state of things or relations of things capable of being perceived by the senses.
• b) any mental conditions of which any person is conscious.
• Under the E A ‘FACT’ is said to be proved when after considering the matter before it, the court
either believes it to exist or considers its existence so probable that a prudent man ought in the
circumstances of the particular case to act.
• ‘Fact DISPROVED’ when after considering the matter before it the court either believes that it does
not exist or consider it non existent so probable that a prudent man ought in the circumstances in a
particular case to act upon the supposition that it does not exist.
• Facts NOT PROVED when it is neither proved nor disproved
CLASSIFICATIONS OF EVIDENCE

• 1 ORAL EVIDENCE S 125 E.A. Means evidence given by words of mouth after swearing to an oath. It may
therefore be direct, or circumstantial or hearsay.
• 2 DOCUMENTARY evidence : is the production of a document in court for the inspection of court in
connection with the case on trial.
• Doc. Evidence is divided into 2
• i. primary doc evidence. Means the production of the document itself for the inspection of the court see S 86 EA
• ii. Secondary doc. Evi. Means the examination or verified of other copies made from the original and proved to
be correct. E.g. a duplicate of a type written general
WHEN SECONDARY DOCUMENTARY EVIDENCE IS ADMISSIBLE.
CLASSIFICATION CONT.

• Secondary doc may be admissible in the following ways.

• i. When the original is lost or destroyed
• ii. When the original is a public document, e.g. police station dairy, Judgement book, bankers book
• iii. When it is inconvenient to move the original e.g. a tombstone
• iv. When the original is in possession or power of the person against whom it is sought to be prove
• V. when the original is in possession of any person legally bound to produce it after due notice has
been served him but did not produce same .
• REAL EVIDENCE is the production in court for the inspection of the court of all physical object
that have been used in connection with the crime e.g club machete , gun, knife e.t.c.
ADMISSION AND CONFESSION
COMPARISON AND EFFECT
• Admission : an admission is a statement oral or documentary or conduct which suggest any inference
as to any fact in issue or relevant facts which is made by a party in the proceedings. S. 20 EA
• Confession : a confession is an admission made at anytime by a person charged with a crime , stating
or suggesting the inference that he committed the crime. S.28 EA
• DIFFERENCE B/W ADMISSION AND CONFESSION
• Admission is made in civil matters while confession is in criminal
• Admission need not be voluntary while confession at all time must be voluntary
• Admission may be made by an agent privy or counsel , confession must be by the accused / suspect
himself
CONT.

• Admission may or may not be signed while confession must be signed by the maker
• CONFESSIONAL STATEMENT BY ACCUSSED PERSON
Confessional statement made by accused person are admissible in evidence in the following circumstances:
• a) when the confessional statement is freely and voluntarily made
• b) that the confession was not obtained by any direct or implied promise with regards to the charge.
• c) threat or inducement was not administered when obtaining the confession
• d) the accused was cautioned
• e) the accused must sign the statement
• f) that the confessional statement was counter signed by a senior police officer where possible
EFFECT OF CONFESSION ON CO-
ACCUSED
• Where more than one persons are charge jointly with a criminal offence and a confession made
by one of such persons in the presence of one or more other persons so charge is given in
evidence , the court shall not take such statement into consideration as against any of such
persons in whose presence such statement was made except he adopts the said statement by
words or conduct.
SOURCES OF NIGERIAN LAW OF
EVIDENCE
The Evidence Act 2011 and other enactments
S. 3 E. A. ‘ Nothing in this act shall prejudice the
admissibility of any evidence that is made admissible
by any legislation validly in force in Nigeria.
FUNDAMENTAL HUMAN RIGHTS
PROVISIONS AS SOURCES OF EVIDENCE
• S. 1 (3) CFRN states the constitution is supreme and its provisions shall
have a binding effect on all authorities and persons through out the
federal republic of Nig. Any law that is in consistent with the provision
of the constitutions is void to the extent of its inconsistencies.
• Subject to the provisions of s.1(3) of 99 const as amended any rule of
evidence as procedure which is contrary to those constitutional
provisions is void and of no effect.
SOME EXAMPLES OF
CONSTITUTIONAL PROVISIONS
• S 36(1) 99 CFRN as amended in the determination of civil right and
obligation including any question of or determination by or against any
govt or authority , a person shall be entitled to fair trail within
reasonable time by a court or tribunal. FAIR TRIAL
• S 36(3) states that the proceedings of a court or tribunal relating to the
matter mentioned in (1) shall be heard in public. JUSTICE MUST NOT
ONLY BE DONE BUT MUST BE SEEN TO BE DONE.
• S 36 (4) that whenever any pers is charged with a criminal offence , he shall unless the
charges are withdrawn is entitled to fair hearing within reasonable time by a court of law.
• S 36(5) states that every person charged with a criminal offence shall be presumed to be
innocent until the contrary is proved. That is his guilt. PRESUMPTION OF
INNOCENCE
• S 36 (6)every person charged with criminal offence shall be entitled to:
i. Be informed promptly in the language he understands and in details of the nature of
the offence.
.
• ii be given time and facilities for the preparations of his defense
• iii to defend himself in person or by a counsel of his choice.
• iv to examine in person or by his counsel the witnesses called by the
prosecution before any court and carry out the examination of witnesses to
testify on his behalf before the court on the same conditions as those applying
to the prosecution witnesses.
• S 36 (6)(e) every person who is charged with criminal offence shall be
entitled to have without payment the assistance of an interpreter if he does not
understand the language of the court. AJAYI V ZARIA N.A.
• S 36 (9) NO person who has been tried by a court competent
jurisdiction of a crime and he is either convicted or acquitted shall
again be tried of the same criminal offence. Doctrine of autre fois
convict or acquit.